Teacher Tenure: Taking It to the Courts

Like all society's most vexing problems, the question seems deceptively simple -- what is the best educational system for our children? This question is so broad that it may be all but unanswerable with anything other than, "it depends." The current focus of our never-ending education debate has settled on a narrower issue, that of teacher tenure.

The question of how and whether public school teachers should be able to obtain job security, or phrased another way, how easy it should be to fire them, is not new. But the tactic bringing this issue to the fore embodies is. The current strategy seems to be, if at first you do not succeed in the legislative context, go to court.

Recently former news anchor-turned-education advocate Campbell Brown gained attention by filing a lawsuit challenging New York state laws that provide for teacher tenure and other job protections. Brown now leads the Partnership for Educational Justice (PEJ). The PEJ lawsuit contends that the New York's laws harm poor and minority students, who are more likely to be stuck with weak teachers than wealthier, white students. The lead attorney for the suit is none other than David Boies, famous for his arguments in Bush v. Gore and Hollingsworth v. Perry, the case dealing with California's now-overturned ban on same-sex marriage.

Brown and others are riding the coattails of a decision by a Los Angeles Superior Court judge in Vergara v. California. There Superior Court Judge Rolf M. Treu declared California's teacher tenure laws as violative of the California Constitutional right to equality of education. Vergara has been stayed pending appeal.

Shortly after the Vergara decision, the New York City Parents Union, another group of plaintiffs in New York, filed a similar suit in New York. Plaintiffs in New York may face a tougher legal landscape than those in California as New York teachers can obtain tenure in three years, twice the length of time allowed in California. It is possible that the two New York lawsuits will be consolidated as they raise similar questions.

Vergara has provided advocates with the political and legal momentum to bring suits in other states to address the issue of teacher tenure and other job protections. It is far too early to predict how these cases will be decided and why. The teacher tenure suits require a significant undertaking of resources and will take years to wind their way throughout the judicial system. This is merely the first act of a longer play.

Critics on both sides of the debate know that the outcome of these suits could help to shape how states will be able to structure their educational systems.

Michelle Rhee, the head of StudentsFirst, and former chancellor of Washington, D.C.'s school district may be the spiritual leader of this latest anti-tenure movement. The goal of Rhee and other critics of tenure is to reform three facets of the current system - 1) how quickly teachers can obtain tenure; 2) the "last in, first out rules" rules that allow younger, sometimes higher-performing teachers to be fired before more senior, sometimes lower-performing teachers; and 3) the laws that make it difficult to dismiss incompetent or subpar teachers. Job security should be tied to a track record of performance, not seniority, Rhee and others argue.

On the other side, many question how we will attract and keep talented teachers for comparatively-low paying jobs without the benefit of job security. In addition, some see tenure rules as promoting fairness in hiring and firing decisions that could otherwise be clouded by a teacher's connections to the administration, not teaching skills. Moreover, others view tenure laws and other job protections as allowing teachers the freedom to experiment and innovate without fear of losing their jobs.

The questions should boil down to how we attract and retain talented teachers. Even if the courts do rule in favor of anti-tenure advocates, the questions of how best to structure teacher hiring and firing remain open and left to our lawmakers. Query as to whether our lawmakers should tackle these issues now instead of waiting for the courts to rule on these and other suits.

And of course giving tenure and job security alone will not ensure that the goals of attracting and retaining talented teachers are satisfied. A discussion of teacher tenure and job protection must be accompanied by a larger discussion about school funding and teacher pay.

There are no easy answers. For instance, one proposed solution is to provide teachers with bonuses when their students perform well. But this raises additional concerns. This could punish teachers with more challenging students. In addition it is not clear that the testing instruments are appropriate indicators of good performance.

If there is one thing that both sides can agree on, it should be that our educational system is failing. The consequences of this failure will reverberate throughout our society over generations. It is well past time to evaluate how to ensure that all students, regardless of socio-economic background have access to satisfactory education. Currently the guarantee contained in many state constitutions that students have the right to a quality education seems little more than a hallow promise.